Bob Durst

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Robert J. Durst II is Chair of the Divorce Group of Stark & Stark. He limits his practice to substantial matrimonial and custody matters.Mr. Durst is certified by the New Jersey Supreme Court as a Matrimonial Attorney and by the National Board of Trial Advocacy as a Civil Trial Attorney.Mr. Durst has is a frequent lecturer on Family Law topics, was a Co-Founder of the New Jersey Summer Family Law Institute and is currently the Co Director of the American Trial Lawyers annual Boardwalk Seminar on Family Law. His leading lectures include a nationally known presentation on the distribution of stock options in a divorce, the use and distribution of life insurance in divorce cases and an original series on evidence in divorce cases.


Articles By This Author

Telephone Recordings and Emails Are Legal, and Common, In Divorce Cases

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A case decided by the New Jersey Appellate Court on April 14, 2009, Brown v. Brown, reminds us of the significance of telephone recordings and emails in regards to divorce cases. There is a misconception among many people that it is illegal to tape record telephone conversations. It is not if you are a party to the call; as opposed to wiretapping a conversation to which you are not a party. That case it is illegal under both Federal and State law.


In Brown , Mrs. Brown with the knowledge and, perhaps, advice of her attorney tape recorded a telephone conversation with her husband. The conversation was then used to convict the husband of an act of domestic violence resultant from the "expletive laden" conversation.


Many, many times clients come to us with a handful of rambling, threatening or, at best, harassing emails from their spouses. Common courtesy and civility should dictate against threatening or harassing communications. But, in the emotions of marital strife things sometimes are said that are far better left unsaid.


A word to the wise: Once said it is a permanent record. Assume that every email you write will be shown to the Judge and that every telephone call with your spouse is being recorded. You have absolutely no right to privacy or confidentiality of a conversation or email you have had with or sent to your spouse.


Realize, also, that once written or recorded almost every communication can be retrieved. The delete button is no protection and once recorded (on an answering machine or during a conversation) the words can not be taken back.

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Assets: Are They Real??? How to Protect Your Assets During A Divorce

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The plethora of recent ponzi schemes, frauds and scams poses a new challenge for divorce attorneys and litigants throughout New Jersey and the country. Are the accounts real or are they the subject of scam which may ultimately prove them to be worthless?


It is bad enough that many divorce litigants know that their 401K or other accounts are 50% of last years’ value, even worse if they subsequently learn that event their remaining accounts have been strip of value by  “Madoff type” managers.


If, for example, one of the parties exchanges the house for an account which, subsequent to the divorce, and through no fault of either party, proves to be worthless, is there Post Judgement relief available to the party who, as a result receives nothing of value?


The answer: we don’t know.

A Post Judgment Court may find that the parties should have known of could have obtained pre divorce discovery which would have disclosed the circumstances or could find that it is a”change of circumstances” which justifies a modification of the settlement agreement or judgment.


With regard to the latter, the current status of the law in New Jersey is that a “change of circumstances” does not justify the modification of an equitable distribution agreement or award. Thus, to grant relief to the wronged party a Court may have to “create new law”.


The word of warring is “caution”.

Counsel and the parties must even more carefully than before scrutinize assets and investment accounts.,


Creative Counsel may even develop clauses for their Settlement Agreements which addresses subsequent developments which are beyond the control of the parties, but result in an asset becoming worthless. 


The art form will be “which assets”, how have they failed, why have they failed and for how long is the clause effective?

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Palimony in Writing Bill Passed By New Jersey Senate Committee

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Palimony cases have provided attorneys and judges with vexing factual and legal issues, largely as the result of competing versions of what was intended by the parties. Was there a promise to support someone for life? What if the promising party dies and the estate is sued? Now that actual cohabitation is no longer a necessary element of palimony ( Devaney v. Esperance, decided by the New Jersey Appellate last year), the introduction of a bill which would require palimony agreements to be in writing is most welcome.


The bill, which still needs full Senate approval, would also allow courts to void a written palimony agreement if the parties are not told that they have the right to seek independent legal counsel before signing.  Based on Devaney, the bill does not require cohabitation.
The bill  drew no public testimony and passed without opposition. Its passage by the full Senate is anticipated.


I expect that written palimony agreements will become increasingly  common even if the bill does not pass and absolutely essential if it does. Such agreements should be negotiated and drafted with the same precision as premarital agreements are today so there is no room for misunderstanding if the need for enforcement arises months or years down the road.

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Mel Gibson: A High Asset Divorce With No Pre Nuptial Agreement

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On March 23, 2009 Megan  Smith, Esq of the Stark & Stark Divorce Law Group posted a blog discussing Pre Nuptial Agreements. The recently publicized Mel Gibson divorce, gives real meaning to the value of a Pre Nuptial Agreement.
 
It would appear from early press reports that as much as several hundred million dollars may be in issue in the Gibson divorce and that there is no pre nuptial agreement. It would be presumptuous to say that  Mel Gibson should have had a pre nuptial agreement. None of us know the background of the parties marriage or what their assets were at the time of their marriage 28 years ago. But, certainly this divorce will highlight to all of us the value of Pre Nuptial agreements and the consequences of a divorce with or without an agreement.
 
Persons contemplating a second marriage, a marriage later in life or those that have accumulated assets at the time of their marriage should revisit Megan Smith's article and seek competent legal advice as to the advisability of a Pre Nuptial Agreement.
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Tale of New Jersey Governors and Rock Stars: Reasons Why New Jersey Should Be a "No Fault" Divorce State

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For more than two decades New Jersey legal scholars, Courts and Legislature have tried valiantly to make a NJ a "no fault" divorce state. Why? To protect litigants from the unnecessary humiliation of disclosing highly personal information, and to recognize that there are at least two sides to every story and/or very often underlying reasons for a person's conduct.


For over a half century New Jersey has abandoned its former "Heart Balm" statutes which allowed a "wronged" litigant to sue the third party for "alienation of spousal affections". Why? Such claims simply had no relevancy in modern society. But, despite the best efforts of many, some of our citizens seem to have a inexplicable need to be certain that not only the "fault" of their spouse is glaringly exposed, but that the rest of us are inundated with all of the prurient details.


First, our former First Family, the McGreevy's "entertained" us with daily allegations and cross allegations regarding homosexual behavior, multiple sexual partners and group sex. Who, I ask are interested and, if so, why?


Now we are bombarded with allegations concerning the sexual exploits of the "Boss". Is there a person out there who cares, and, if so, why?


Experienced New Jersey divorce attorneys strive to keep cases under control, eliminate unnecessary allegations of "fault" and to refrain from allegations which can only inflame the matter, embarrass the parties, severely damage the children and cause irreparable harm to all concerned. Unfortunately, our task is made much more difficult when political media hounds, show business publicity seekers and attorneys who, apparently feel that such publicity, will benefit their personal careers allow the divorce process to regress into media messes.
 

Why? Certainly for no legally viable reason. Most likely for some distorted emotional reaction, some publicity seeking litigant or attorney or some other distorted reasoning. None of which benefits the system. All of which further, and unnecessarily, burdens an already overworked system. All of which prevents the Court form directing its attention to those litigants who do "play by the rules".


Note to the famous NJ residents --- enough already --- handle your problems like the rest of us, in private and civilly.

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Good Intentions, But Bad Consequences

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Pending Amendments to the Family Part Rules of Court

For over 25 years our Family Courts have utilized Early Settlement Panels as, perhaps, the most effective means of helping divorce litigants settle their cases. The Settlement Panels are staffed with two voluntary attorneys who read extensive written submissions and then meet with and hear the arguments of the Attorneys for the parties. The Panelists then meet with the parties and make settlement recommendations.


Statistics show that almost 60% of the cases submitted to the Early Settlement Panels, do, in fact , settle very consistently with the Panelists’ recommendations. If not accepted, the Panel’s recommendations are confidential and can not be subsequently communicated to the Trial Judge without the mutual consent of the parties.


In a well intended effort to discourage litigants from unreasonably rejecting the Panel’s recommendations., recently proposed amendments to the Court Rules would allow the disclosure of the Panelists’ recommendations relevant only to the issue of Counsel Fees if the recommendations are rejected by one of the parties and, as a result the case proceeds to trial.


A seemingly logical suggestion which will not work and will, in fact, discourage the effective use of Early Settlement Panels.


Why? Because divorce cases have no clear “winner” or ‘loser”. The issues in a divorce case are not easily or clearly defined as to who “won” and who “lost”.


Thus, a Panel may make a recommendation on Issue A which is perfectly sound and should have accepted but for the fact that it was related to Issue B which could not be resolved.


For a Trial Judge to have to go reconstruct the Panel’s recommendations and make a determination as to who reasonably accepted the recommendations and who unreasonably rejected them creates “a trial within a trial”.


The statistically fact is that Early Settlement Panels are highly effective and useful tools of settlement for all divorce litigants.


Do not tamper with them—they work well and effectively—they require candid and confidential exchange of information and changes such as those proposed have only the downside risk of deceasing their effectiveness.

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What Are "Changed Circumstances" In This Economy?

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Each day we read of more lay offs; wholesale lay offs in major financial institutions, retailers and the manufacturing industry. Each day we hear of more corporate bankruptcies. Major financial institutions that have the hallmark of financial stability suddenly no longer exist nor dot their thousands of jobs. Each day we hear differing projections as to whether we are in a "recession" and/or how long it will last.

 

Now we are told that the nation's unemployment rate has hit an all time high--higher in actual numbers than any time in our history including the "Great Depression". What does this mean to divorced persons who are paying child support or alimony, and now find themselves unemployed? I still hear Courts saying that several month's of unemployment is not "a change of circumstances", it is simply a "temporary" situation.  "Temporary" is a very relative term to a person seeking employment in an economic environment where virtually every business is laying people off and no one is hiring.

 

I still see Courts continuing to impute income to persons who have no realistic likelihood of ever returning to their prior employment or former level of income. A worthy concept when people choose not to work, but how relevant is it when there is simply no work to be had? I still see Courts ordering the payment of support from IRA or investment accounts that have already been ravaged by the market. What resources will those persons have to support themselves in the years to come?

 

Why? Certainly not because the Courts are not aware of what we all read and hear or simply to be arbitrary, but because the children and the dependent spouses still have expenses. Still have expenses, which no one has yet figured

 

out how to address in this economy. What do we do when the primary breadwinner is no longer employed, has no reasonable prospect of regaining employment and has drastically diminished assets? Family Courts are Courts of equity, and it is incumbent upon all who are involved in this process to seek and do equity to all concerned. Family Court Judges, Family Court attorneys and will intended persons associated with our system must address this issue and address it sooner rather than later.

 

Extreme caution and good judgment must be exercised to do equity when required and, at the same time, prevent malingerers from avoiding justly due and payable obligations basis of contrived economic hardships. Delay will simply work hardships, which may not be able to be resolved after the fact.

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Seven Year Delay Does Not Bar Collection of Child Support Payments

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A Trial Court refused to enforce the payment of child support because of the recipient's seven year delay in bringing the Motion for Collection. (Faro v. Vonder Hayden, decided 12/5/2008). The Appellate Court then reversed that finding and held that the delinquent child support could be collected despite the seven year delay.


The Appellate Court focused on the father's history of non-payment, his prior non-compliance with Court Orders and his failure to show that the enforcement would be unfair. The moral of the story would seem to be that a person who has been defiant of prior Court Orders can not find solace from the Court simply because of a delay by the other party. Seemingly a reinforcement of the old principles that those who seek equity must have done equity or that those seeking the aid of the Court must come "with clean hands"..

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Parental Alienation May Give Rise to Monetary Damages

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In a recent Hudson County case (Smith v. Smith, dec'd December 1, 2008) a father sued his ex-wife and her parents for conduct which he alleged alienated him from his children. The ex-wife and her parents defended, in part, on the basis of the "Heart Balm Act" which bans actions for "alienation of affection" in NJ. 
 


An earlier case in Morris County had dismissed  a claim similar to Mr. Smith's  on the basis that the Heart Balm Act was applicable. The Morris County Court found that the father's claims for the alienation of his children were prohibited under the Heart Balm Act.
 


However, the Hudson County Court held that Mr. Smith's claims were not for alienation, but were, instead,  for the intentional or negligent infliction of emotional distress.
 


It is important to note that the Hudson County Court did NOT find that Mr. Smith had a valid or compensable claim. It  merely refused to grant the Motions to Dismiss filed by the ex wife and her parents and allowed the matter to proceed toward trial.
 


The fact that we now have two diametrically opposing decision from  2 Trial Courts in Morris and Hudson Counties is  almost certainly a precursor for a future ruling on the issue by a New Jersey Appellate Court. 
 


Although the  Morris or Hudson County cases are interesting, neither are binding on other Trial Courts and the rights of divorced or  estranged parents will have to await binding determination by an eventual Appellate Court decision.
 


However, at least a warning bell has been sounded. Parents who behave in ways which alienate the other parent from their children are not only doing their children a great disservice, but may now find themselves financially accountable for their conduct.

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How Wide is the Delaware When You Are Divorcing?

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Many residents of Bucks County Pennsylvania work in the adjoining counties of Mercer, Burlington and Hunterdon, New Jersey and vice versa. When those residents experience marital problems, it is not unusual that one or the other of them may relocate from Pennsylvania to New Jersey or vice versa, and may then have a legitimate option to file for a divorce in either state.


It is, of course, only in those cases in which the relocating party has resided in the new state for the required period of time to qualify them to file for the divorce in the newly acquired state of residency that this is a legitimate option.  No party can or ever should attempt to avoid the jurisdiction of their home state by relocating or fabricating the length or legitimacy of their new residency in order to acquire jurisdiction.


If the new state is New Jersey, a person must have 12 months of continuous residency prior to the filing of the complaint for divorce.  If the new state is Pennsylvania, the period of continuous residency prior to the filing of the petition for divorce is 6 months.


 In either case, the party filing for the divorce also has the option of filing in the original state if his/her spouse continues to reside in the original state.  The change of a person’s state of residency may have significant ramifications on a variety of levels above and beyond simply the jurisdiction for their divorce.  State Income Tax, Estate Tax and a variety of other factors must all be considered before changing one’s residency.


 However, as Divorce Attorneys we are often asked whether a client should file in one state or the other and the legal ramifications of doing so. In order to analyze that question, the procedural and substantive differences in the law of the respective states as they apply to the facts of a specific case must be carefully considered.


There can be no definitive answer as to which state may be the preferred jurisdiction for the divorce, and each case must be examined in the context of its own factual and legal issues as well as in the context of the other factors mentioned above.  Our office has six attorneys who are licensed to practice divorce law in New Jersey and four who are licensed to practice in Pennsylvania. Very often, one or more of those attorneys must be consulted in each case in order to make an intelligent decision as to whether a complaint can be properly filed in either state and what may be the ramifications of such filing.


 Very often, we, as Divorce Attorneys, need to also confer with our estate, tax and real estate partners.  Sometimes the decision can be made based solely upon divorce related issues, and other times, it is far more complex. However, typical divorce related issues which must be addressed often include: 

  • The grounds for the divorce  - that issue is generally not significant since both Pennsylvania and New Jersey now include and encourage the use of broad “no fault” grounds for divorce.
  •  The time which either state may take to process the case – New Jersey has adopted a “Best Practices” doctrine which encourages the Courts of New Jersey to conclude an action for divorce within 12 months of its filing date; Pennsylvania has no similar provision.  Generally, but not always, cases take longer to conclude in Pennsylvania than in New Jersey.
  • The Child Support Guidelines - although each state’s Guidelines are different, they are not vastly different.  In both states, the Guidelines are applicable to families up to a combined income of $240,000 and over that amount, both states have similar case law for determining “above guidelines” child support.
  • Alimony - Pennsylvania has a presumptive amount for temporary alimony defined as being an amount equivalent to 40% of the difference between the parties income; New Jersey has no such presumption.  Generally speaking, New Jersey is more liberal in awarding post divorce alimony in higher amounts and for longer periods of time.
  • College expenses - a party’s responsibility for college expenses for the children may vary depending upon the state of jurisdiction


Procedurally, Pennsylvania and New Jersey are very different and depending upon the needs of each case, the respective procedure of one or the other of the states may be better suited or lesser suited to a particular case.


 In short, just as when one establishes a state of residency for real property tax reasons, personal income tax reasons or estate planning reasons, care should be taken to choose the proper jurisdiction for one’s divorce if, in fact, a person qualifies for jurisdiction in either state. 

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Older Entries

June 27, 2008 — Parenting Issues Can Not Be Arbitrated

June 16, 2008 — Same Sex Marriages, Civil Unions and Domestic Partnerships---How and Where Can They Be Terminated?

April 4, 2008 — Pre-Owned and Inherited Assets

March 28, 2008 — DurstNotes on Divorce Law - # 9

March 26, 2008 — Domestic Violence Victim - Change of Name

March 21, 2008 — DurstNotes on Divorce Law - # 8

March 14, 2008 — DurstNotes on Divorce Law - # 7

March 10, 2008 — The Basics of Custody

March 7, 2008 — DurstNotes on Divorce Law - # 6

February 29, 2008 — DurstNotes on Divorce Law - # 5

February 22, 2008 — DurstNotes on Divorce Law - # 4

February 15, 2008 — DurstNotes on Divorce Law - # 3

February 8, 2008 — DurstNotes on Divorce Law - # 2

February 1, 2008 — DurstNotes on Divorce Law - # 1

December 19, 2007 — Follow-up on Step-Mother Kidnaping Case

December 6, 2007 — Divorce Law Podcast - # 10

December 5, 2007 — Your Divorce -- You Do Have Alternatives

December 3, 2007 — Societal Norms: Are there any left after CALBI?

November 29, 2007 — Divorce Law Podcast - # 9

November 15, 2007 — Divorce Law Podcast - # 8

November 8, 2007 — Divorce Law Podcast - # 7

November 1, 2007 — Divorce Law Podcast - # 6

October 30, 2007 — Disability Pensions

October 25, 2007 — Divorce Law Podcast - # 5

October 18, 2007 — Divorce Law Podcast - # 4

October 16, 2007 — Resolving Custody & Parenting Disputes In A Divorce

October 11, 2007 — Divorce Law Podcast - # 3

October 4, 2007 — Divorce Law Podcast - # 2

September 27, 2007 — Divorce Law Podcast - # 1

September 26, 2007 — Cell Phones, Email and the Electronic Age of Divorce

September 21, 2007 — Can a Step Parent Kidnap a Child?

September 13, 2007 — Tax Evasion Results in a 5-Year Federal Prison Sentence

September 10, 2007 — Cohabitation & Its Affect on Alimony in 2007

August 1, 2007 — Same Sex Cohabitation: Impact Upon Alimony

July 26, 2007 — New Jersey Supreme Court Modifies Child Support Guidelines

August 7, 2006 — Consideration for Irreconcilable Differences in New Jersey Divorce

March 21, 2006 — Social Security Benefits and Child Support

February 23, 2006 — Child Support Judgments May Not Guarantee Payment

February 21, 2006 — Relocation Without a Plenary Hearing

February 20, 2006 — Collection of Counsel Fees - Better Late Than Never

February 16, 2006 — Palimony - Is it Better to Live Together?

February 15, 2006 — When is a Child Emancipated?

February 13, 2006 — Changed Circumstances in a Divorce

February 8, 2006 — Domestic Violence Restraining Orders--Balancing the Children's vs. the Parents' Rights

November 30, 2005 — Stock Options - No "Serbonian Bog" in New Jersey

October 13, 2005 — New Bankruptcy Act Will Affect Divorce Litigation

September 21, 2005 — Child Support Liens

September 14, 2005 — Limited Duration Alimony

August 29, 2005 — Family Law in New Jersey - Back To Basics

June 15, 2005 — New Jersey Appellate Court Rejects Same Sex Marriages

June 14, 2005 — Divorce Litigant's Malpractice Claim Barred

May 19, 2005 — Parents Asked to Pay Alimony to Son's Wife

April 21, 2005 — Revised Child Support Guidelines

April 19, 2005 — Court Considers The Impact of Marital Fault In Alimony Determinations

March 30, 2005 — Step Parent Held Responsible For Child Support

March 25, 2005 — "Miller Rate" Revisited

March 1, 2005 — Withdrawing Attorney May Be Required to Return Client's Retainer

December 21, 2004 — Return of Child Under Hague Convention on the Civil Aspects of Child Abduction

December 7, 2004 — Best Practices - Are They Always Best?

November 30, 2004 — Divorce in New York State

November 24, 2004 — Uniform Mediation Act

November 16, 2004 — Opinions Are Mixed On Collaborative Divorce Bill

November 15, 2004 — New Jersey Prevention of Domestic Violence Act

November 13, 2004 — The Cost of Qualified Domestic Relations Orders

October 5, 2004 — New Jersey Court Will Have to Decide on the Validity of a Canadian Same Sex Marriage

September 28, 2004 — Same Sex Marriage Case May Go Directly to NJ Supreme Court

September 27, 2004 — Dissolution of Domestic Partnerships

September 17, 2004 — Federal Decisions Which May Impact New Jersey Divorce or Family Law

September 13, 2004 — Judge Permits an Intra State Move of Children

September 13, 2004 — The New Jersey Supreme Court Revises the Case Information Statement

September 1, 2004 — Custody